Dismissal and sick leave

01 August 2019

If an employee is off sick consistently, or has a long-term illness that stops them from doing their job, then you can end their contract of employment. However, your business needs to handle the situation properly so as to avoid any legal complications. It’s essential you only dismiss an employee fairly, otherwise you could face legal action. This guide explains the regulations you need to keep in mind in the event of dismissing someone on sick leave.

Fair reasons for a dismissal

What are the actions from your employee that can lead to a dismissal? The most common breaches of employment contract include:

  • Missing work continuously.
  • Having poor discipline over long periods of time.
  • Misusing drugs or alcohol.
  • Stealing from your business.
  • Acts of dishonesty.

Regardless of a staff member’s actions, you’ll need to have a fair sickness absence procedure in place for your business. You can dismiss for a non-serious breach if your staff member already has warnings on file. Or you can dismiss for a first offence (i.e. a serious breach). And then you would dismiss for them for ‘gross’ misconduct).

Steps to improving absenteeism

Before taking any action for dismissal while on sick leave, it’s important you approach the staff member in question. You should find out if you can:

  • Support them towards a better attendance, including examining whether it’s the job that’s making them ill.
  • Let them with time off so they can recover from their illness.

You should also note that if your employee has a disability, it’s your legal duty to support them in your workplace. Further to that law, if you dismiss a staff member due to their disability then that’s discriminatory dismissal (rather than unfair dismissal for sick leave).

Learn more about absenteeism

Read our guide to learn how absenteeism impacts your workforce, and how to improve it.

Read our absenteeism guide >

Long-term sickness absence policy

It’s a common business question, “Can you dismiss an employee on sick leave?” The answer is yes, you can, but with good reason. So you should set up a sickness absence policy. In this you can establish a point you require a formal review if your employee is breaching your procedures. Your policy can clarify the following points:

  • An employee can take suitable amounts of time to recover from an illness injury. Remember, depending on the case it’s often a slow process.
  • How you’ll go about minimising the loss of productivity during the staff member’s absence.
  • The approach you’ll take in considering dismissal of a member of staff who’s on long-term sick leave. For this point, you can establish the reasonable attempts you’ll make in attempting to support their return to work.
  • What you class as long-term sickness related absence. You can refer to how this differs to your short-term policy.
  • The need for medical reports to support a period of sickness.

If an employee then goes beyond your trigger points, you can hold a formal review with them. This can, of course, lead to a potential dismissal.

Dismissing an employee on long term sick leave

Again, it can be a difficult decision to let an employee go. But if you do need to dismiss them, then you’re within your legal rights to do so. And a common question from employees is, “How long can you be on sick leave before dismissal?” Well, most employers usually consider long-term sickness absence as four weeks or more. Before you consider dismissing your employee, you must consider their right to contest your decision. But as Acas points out: “Although an employee may be off sick, he or she may still be able to attend a disciplinary hearing - and employers should consider making reasonable adjustments to facilitate this. This could include visiting the employee at home or meeting in a neutral venue.” You can, in certain circumstances, go ahead with the hearing without your employee. A long-term sickness absence formal review can then be held, with a final meeting for a potential dismissal. But, remember, your employee can still appeal this decision.

Ill health retirement

Another possibility is if your staff member is old enough—you may be able to suggest early retirement on the grounds of ill health. Under your long-term sickness policy, you can consider this option if:

  • Medical advice you receive makes it clear your staff member can’t return to work.
  • Your employee can claim a pension or lump sum under their pension scheme.

If this retirement option is a possibility, the individual can contact your HR department in the first instance to begin the proceedings.

Terminal illnesses

In cases where your employee is seriously ill, your sickness policy should explain your procedure. In it, you can explain you’ll aim to help your employee’s plans and assist their role coming to an end, which can include financial assistance. If their illness leads to the termination of their role, then you can offer a cash lump-sum or pension scheme payout to accommodate their needs. Your policy should also explain your employee doesn’t have to divulge information about their illness to you. But it’s generally advantageous to do so you can support them.

In need of further help?

We can help you to deal with the dismissal of staff members during their sick leave. Get in touch with us today on 0800 028 2420.

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